Cancellation of marriage after having physical intercourse does not attract the charge of rape when the man has every intention to fulfill the promise of marriage

Bombay High Court: In a yet another case where complaint has been lodged against a man for rape and cheating after gaining confidence of the complainant by giving false promise of marriage, a division bench of Ranjit More and Anuja Prabhudessai JJ., exercised the powers under Section 482 of CrPC and quashed the complaint, as continuation of the same would amount to abuse of the process of court.

Mr. Kumbhakoni, the Counsel for the applicant, contended that the FIR against the applicant should be quashed by the Court by exercising its extraordinary jurisdiction under Section 482 CrPC, as the complaint nowhere disclosed that the physical relationship was made with the respondent against her will and without her consent. Mr. Rajeev Patil, the Counsel for the respondent, contended that the conduct of the applicant by representing himself by some other name on the matrimonial site and contacting various other women even after finalization of marriage with the respondent is sufficient to infer that the applicant intended to deceive the respondent since inception.

The Court relied on Deelip Singh v. State of Bihar (2005) 1 SCC 88, where it was held that consent given by a woman believing the man’s promise to marry her would fall within the expression “without her consent” only if it is established that from the very inception the man never really intended to marry her and the promise was a mere hoax. The Court observed that the facts of the present case clearly shows that the applicant was serious in getting married to the respondent, and that at various family occasions he introduced the respondent as his fiancée to his relatives. The Court noted that the promise given by applicant to marry respondent cannot be termed as false promise or a case of breach of promise, infact it was a case of cancellation of marriage, as the decision to cancel the marriage was originated from the side of the respondent and was communicated to the applicant by the father of the respondent.

The Court stated that even if the case of the respondent as disclosed in the entire charge-sheet is taken to be true, in that case also, no offence under Section 376 of IPC is disclosed, and charge of cheating cannot sustain when it is clear that the applicant was not having fraudulent or dishonest intention at the time of making promise, as at the very first meeting with the respondent, the applicant disclosed his original name, gave information about his first marriage, his family background, and his 13 year old son with the first wife. The Court further relied on Zandu Pharmaceuticals Works Ltd v. Mohd. Sharaful Haque (2005) 1 SCC 122, and quashed the prosecution of the applicant exercising power under Section 482 CrPC considering it to be an abuse of the process of court. Nandan Sadanand Bendarkar v. State of Maharashtra, 2015 SCC OnLine Bom 2044, decided on 06.05.2015

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